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Fighting Disinformation Through the Courts

Dispatches from our founder
This Week
Last year at this time, thousands of protesters stormed the U.S. Capitol and tried to interrupt certification of the presidential election results. They were fueled by lies about the election being “stolen”—lies that were spread by a small cadre of right-wing online publishers and broadcasters whose stories had gone viral.
Since then, there has been a lot of soul-searching about how to hold online platforms like Facebook accountable for the misinformation that they distribute to their users. Bipartisan support has been growing in Congress for reforming tech platforms’ so-called Section 230 immunity, which provides the tech companies with a legal shield against liability for third-party content on their platforms. And the EU is moving forward with a legal framework that will require large platforms to provide more transparency into their algorithms and submit to independent audits.
In the meantime, however, an increasing number of alleged victims of disinformation are taking a different approach. Rather than try to hold platforms like Facebook accountable for distributing lies, they are suing publishers directly for defamation. Some will remember when Trump supporter Nicholas Sandmann sued eight media companies for their coverage of his encounter with Omaha Tribe elder Nathan Phillips at the Lincoln Memorial. So far, three of Sandmann’s lawsuits—against CNN, NBC, and The Washington Post—have been settled. Kyle Rittenhouse has also hinted that he may be gearing up for a defamation lawsuit of his own.
And it’s not just right-wing individuals taking aim at media outlets. Two election technology firms, Smartmatic and Dominion Voting Systems, have sued Fox News and other outlets for implicating them in false narratives about election fraud in 2020.
Defamation cases by public figures or entities are famously expensive and difficult to win because of the high standard of proof (“actual malice”) required to show that the publisher not only published incorrect information but knew or had reason to know it was incorrect and published it anyway. 
Journalists like myself tend to be worried about the prevalence of defamation cases because they can be extremely costly even if you win. The nonprofit investigative newsroom Reveal spent four years fighting and ultimately winning a defamation case but at a huge cost that far exceeded its insurance coverage. It was only because lawyers at Davis Wright Tremaine (who are also our lawyers at The Markup) and Covington & Burling provided pro bono representation that the newsroom survived. 
And defamation cases can be used as a form of harassment. Gawker was forced to shut down after a defamation case funded by tech billionaire Peter Thiel. Former U.S. Rep. Devin Nunes sued several news outlets for coverage of his dealings with a suspected Russian agent. Many of the cases have been tossed out of court, and his attorney has been sanctioned by multiple courts for filing nuisance lawsuits.
To understand this controversial strategy for combating disinformation, I turned this week to a small cadre of lawyers and advocates at a nonprofit called Protect Democracy that is suing several publishers for defamation on behalf of Georgia election workers who were falsely accused of tampering with ballots during the presidential election.
I spoke with the lawyer leading Protect Democracy’s lawsuit against The Gateway Pundit, Brittany Williams. She previously worked at the U.S. Department of Labor, enforcing federal worker safety, minimum wage, and overtime requirements. Before that, she served as an assistant attorney general within the Massachusetts Attorney General’s Office, focusing on civil rights, administrative law, and environmental protection matters. She is a graduate of the University of Wisconsin–Madison and Harvard Law School.
Her written responses to my questions are below, edited for brevity.
Brittany Williams
Brittany Williams
Angwin: You are pursuing several defamation cases, which have historically been expensive and costly. Can you explain the risks and rewards of pursuing a defamation strategy in order to protect democracy?
Williams: Solving the disinformation problem is going to require a multifaceted approach, and defamation litigation is only one tool in the toolbox. But over the past several years, one of the only effective responses to our currently historic levels of anti-democratic disinformation has been defamation litigation. It was a defamation suit that forced Fox News to cancel Lou Dobbs’s show. It was a defamation suit that forced several publishers and broadcasters to retract false claims that a murdered former DNC staffer was the person responsible for the 2016 hack of the party’s email accounts. So while defamation litigation can’t address all instances of political disinformation, we’ve already seen it have a real impact. 
However, defamation suits do have their downsides. First, defamation litigation brought in bad faith risks chilling protected speech. We think the Supreme Court’s “actual malice” doctrine, which is purposefully formulated to protect First Amendment interests, accounts for that risk. But it also means that it’s often the legitimate cases with the greatest impact on our democracy, such as those concerning intentional or reckless political disinformation, that are the most difficult cases to win. Moreover, these cases take time to litigate and resolve. They’re deeply fact-bound, requiring discovery into a speaker’s knowledge and intent as well as into the issues of injury and damages. So defamation suits present a longer-term strategy and don’t usually help stop disinformation in real time.
Angwin: What do you think would help stop disinformation in real time?
Williams: To take a historical perspective for a moment, our current era is not the only time the United States has struggled with disinformation. It’s not even the first time we’ve struggled with political disinformation that posed challenges for our democracy. The primary drivers of what makes this moment different, however, are the unprecedented changes—at least in scale—in our information technology. One aspect of these changes is the decentralization of who is speaking and how, which is what our defamation litigation strategy seeks to address. But another aspect of these technological shifts is how quickly they allow disinformation to be spread and amplified across networks. So, on that front, we’ll likely also need interventions in the gatekeepers’ space if we want to slow or stop the spread of disinformation in real time.
Angwin: One of your lawsuits accuses the website Gateway Pundit of publishing knowingly false information about two Georgia election workers, falsely alleging that they ran Joe Biden ballots through the counting machines more than once. Can you describe what happened and how it has affected these workers’ lives? [I reached out to Gateway Pundit for a response to the allegations in the Protect Democracy petition and did not receive one.]
Williams: After the Trump campaign and other outlets initially spread the lie that election workers in Fulton County, Ga., swung the election for Joe Biden, The Gateway Pundit proudly asserted that it was the first outlet to specifically name our clients in connection with that lie. As a result of the falsehoods The Gateway Pundit and others published about our clients, Ms. Freeman and Ms. Moss suffered terrible harms. They’ve been harassed both online and in person, their personal and professional reputations have been damaged, and they’ve feared for their safety and the safety of their families. Ms. Freeman had to flee her home at the FBI’s recommendation.
Angwin: What redress are you seeking for these workers? 
Williams: We’re seeking justice for Ms. Freeman and Ms. Moss, in addition to accountability for the entities that knowingly and deliberately spread dangerous lies about them. In practice, that’s compensatory and punitive damages, as well as a court order requiring these defendants to retract the defamatory statements. They deserve to be made whole. 
Angwin: Defamation cases appear to be proliferating in political media coverage. Conservatives like Devin Nunes and Nicholas Sandmann have sued over coverage they don’t like, while two voting machine companies are pursuing defamation claims against Fox News and others. Is defamation a new weapon in the battle over the information landscape?
Williams: We wouldn’t call defamation litigation “a new weapon.” It’s actually an old cause of action that predates the United States. Over centuries, defamation law has evolved alongside our information ecosystem. The invention of the printing press, rise of national newspapers, and onset of radio and television broadcasts all led to spikes in defamation litigation and contemporaneous developments in defamation law to balance the value of individuals’ reputations against the value of public debate and access to information. What we’re currently experiencing are this era’s attempts to grapple with the impacts of the most recent technological changes within our information ecosystem.
Angwin: How important is a healthy information ecosystem to democracy? And will a successful defamation suit against a publisher like Gateway Pundit help clean up the system by deterring others from publishing fake news?
Williams: Generally speaking, healthy democratic governance is premised on the open and free-flowing exchange of ideas and information. To further that exchange of ideas and information, traditional news outlets operate under a set of common journalistic standards. In our modern media landscape, not all outlets that hold themselves out as “news” outlets share that commitment to journalistic standards. This has flooded our information ecosystem with rampant lies and falsehoods. So our goal here is to use these suits to hold these entities to the same standards the rest of the news media is held to because facts matter. There can’t be government by and for the people without a shared understanding of basic facts.
Angwin: What do you say to critics who say that defamation cases are a way for wealthy and powerful people to try to silence their critics?
Williams: It’s true that powerful people in the United States and elsewhere have deployed defamation lawsuits in abusive ways. You can look at the many libel suits brought and threatened by Donald Trump as one example. But we’re not bringing those cases. And we’re working hard to select cases where winning will not require us to succeed in changing the law in ways that would open the floodgates for abusive lawsuits. In this country, we have both federal and state laws that provide protections against abusive defamation litigation. That doesn’t mean there won’t be abusive lawsuits going forward, or that some of them won’t succeed. But we don’t see our work as enabling that kind of litigation.
As always, thanks for reading.
Best,
Julia Angwin
Editor-in-Chief
The Markup
Additional Hello World research by Eve Zelickson.
 
From The Markup
 
One Year After the Capitol Riot, Americans Still See Two Very Different Facebooks
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P.S. For more from Julia Angwin and Hello World, look here. To receive the latest from our Citizen Browser project, sign up here, and so you can keep up on all the news from The Markup, sign up here, and we’ll email you every time we publish about the ways powerful actors are using technology to change society, usually two to three times a week.
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